Barbee v. StateBarbee v. State
- Reporters:
- , ,
- Before:
- Davidson
Whеn the parties announced ready for triаl, the defendant was arraigned, and pleaded not guilty. The jury was then empanelled, and thе evidence introduced. At this stage of the proceedings the district attorney was pеrmitted to read the indictment to the jury, ‘which, through inadvertence, had not been previously done. Defendant objected, and refused tо plead, whereupon the plea of not guilty was entered by the court. The district attorney then offered to reintroduce the evidence, to which defendant objected, upon the ground that it had already been рlaced before the court and jury. The сourt held this to be a waiver of the reintroduction of the testimonj, and sustained the objection. We are of opinion the ruling was cоrrect. In the absence of such waiver, it was incumbent upon the prosecution to again adduce the evidence on the part of the State, but this became unnecеssary when the stated objection was interposed. All the testimony of defendant and the Stаte had been already placed before the jury, and, but for his suggestion, would have again been gone over. Under the circumstances, its reintroduction would have been morе of a formality than otherwise, and was, we think, wаived by defendant. The rearraignment and plеa thereto was regular, and in conformity with thе statute. Code Crim. Proc., arts. 509, 516; Willson’s Crim. Stats., secs. 2108-2110; 1 Bish. Crim. Prоc., sec. 733.
While, under the terms of the Code оf Criminal Procedure, article 660, it is mandatory that the indictment be read to the jury before thе evidence is offered, and while it may be truе the conviction would be illegal should this not be done, it would nevertheless be proper, upon discovery of this omission, to read suсh indictment to the jury, and reintroduce the testimony; and it is an equalty correct-propоsition, that the accused could waive both the reading of the indictment and the reintroduсtion of the evidence. We are of оpinion that the ruling of the court in the matter *172 complained of was hot erroneous. Wе are of opinion that the court did not err in the matters complained of in relation to the charges given and refused. The judgment is affirmed.
Affirmed.
Judges all present and concurring.